Inmate residency case puts Schneiderman on the spot

Attorney general's role uncertain in defending prison inmate count law he backed as state senator

By CASEY SEILER State editor

Published 12:01 am, Thursday, April 7, 2011

ALBANY -- Should Attorney General Eric Schneiderman defend the state against a lawsuit that seeks to block legislation he championed during his days as a state senator?

The issue arose Wednesday after Gov. Andrew Cuomo responded to a question about a suit brought by nine Republican senators against the state Department of Corrections and the legislative panel charged with redrawing the state's political map.

"It's a lawsuit that the state will defend," Cuomo said. "We have to work out who defends it. The attorney general's office would usually defend an action like this. I know that in this case the attorney general was involved in the legislation himself, so we have to sort through those issues."

The lawsuit seeks to block a change to the way New York counts prison inmates for the purposes of redistricting. Until this year, inmates have been counted as being "residents" of the districts where they're incarcerated. The new system would count them in their home communities.

The case -- brought by Sen. Betty Little, R-Queensbury, and eight other GOP lawmakers, plus a group of citizen plaintiffs -- claims the new law violates the state constitution through "the fictitious movement of a phantom population of almost 58,000 non-voting prisoners into residences already occupied by others," and shifts representation from upstate Republican areas to downstate Democratic districts, "which constitutes political gerrymandering."

Supporting the change last year, Scheiderman and his fellow Democrats countered that inmates were being used to artificially boost GOP districts at the expense of neighborhoods where their crimes occurred.

Originally proposed as a stand-alone bill, the measure passed last summer as an element of the 2010-2011 budget -- a path the lawsuit contends was improper.

Schneiderman's office issued a terse response to Cuomo's statement: "The Census Adjustment Act is the law of New York State, and we will fulfill our constitutional obligation to defend state law as we do in all cases."

"We believe that the legislation that was passed last year is constitutional," said Michael Whyland, spokesman for Assembly Speaker Sheldon Silver. "Additionally, under the law the attorney general is charged with the responsibility of defending the constitutionality of our statutes and we think that is absolutely appropriate in this case."

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Late Wednesday, Cuomo's spokesman Josh Vlasto said the governor believes the decision to take the case or not rests with the attorney general.

As a legal question, the governor's opinion has no effect on Schneiderman, an independently elected official. And based on the suit, he almost certainly wouldn't be required to recuse himself.

But as a political matter, Schneiderman has to decide whether he wants to involve himself in a lawsuit that, in a very real sense, will move the debate over the prison count from the legislative chamber to the courtroom -- with the same Republicans squaring off against the same Democrat, and both sides accusing the other of political and not legal motives.